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Editorial: Abbott’s pen cut transparency like a sword

With the simple act of signing his name, Gov. Greg Abbott completed a trifecta of failure by all branches of state government to defend the people’s right to know.

Abbott was proud of himself Thursday for vetoing 50 bills that he claimed were government overreach. One of those was House Bill 2783, regrettably the only government transparency measure to survive the 85th Legislature.

HB 2783, one of the more modest of the sunshine bills introduced this session, would have allowed plaintiffs who sue a government entity for withholding public information to collect attorney fees when the entity ends the suit by turning over the information. Public officials are known to slow-walk an information request to the attorney general’s office when they already know good and well that it’s public information, or to foot-drag until a lawsuit is filed. They sorely need a deterrent, and HB 2783 would have been one — a mild one, but better than nothing.

Abbott’s objection was that the bill would have been an incentive to sue and collect damages at public expense. There is no such thing, and there would have been no such thing, as predatory information-request filing for the purpose of collecting attorney fees. This is a get-rich-never scheme. Find us the worst lawyer in Texas and we’ll show you someone whose time is too valuable to waste on this.

“Texas Public Information Act lawsuits are not common, and when they do occur it’s because a governmental entity has refused to hand over public information — the people’s information,” said Kelley Shannon, executive director of the Texas Freedom of Information Foundation. “Going to court is a last resort, and an option not many Texans can afford. When a lawsuit is necessary, a judge should have the ability to award attorneys’ fees to the prevailing plaintiff who had to turn to the courthouse when all else failed in seeking public records.”

We agree with that.

The people’s right to public information has suffered miserably since Abbott became governor two years ago. Under his administration, the judicial, legislative and, now, administrative branches of government have either actively damaged or failed to protect and restore the public’s right to know.

Notably, in 2015, the Texas Supreme Court decided to let government entities withhold contracts with private businesses from public view on the premise that disclosure would put the contractor at a competitive disadvantage. Any harm caused by disclosure should be an accepted cost of doing business with government — as it was until that ruling.

The court also decided in 2015 to allow nonprofits such as economic development corporations that receive public funding and perform government functions to shut their books from public view.

Ken Paxton also took over from Abbott as attorney general in 2015 and began a new tradition of siding with government against the public on disclosure disputes. One of the more memorable ones was interpreting the court ruling on competitive disadvantage to allow the city of McAllen to keep secret what it paid singer Enrique Iglesias for a performance. Did he underbid Lady Gaga or what?

Among the most notable failures of the 85th Legislature was the death of bills to remedy those two court rulings. Lawmakers spent too much time bickering about the discriminatory transgender bathroom bill, which failed, thankfully, and the anti-Hispanic show-me-your-papers so-called sanctuary cities bill, which passed, unfortunately, and which Abbott signed with gusto.

“It’s so unfortunate that an anti-transparency attitude took hold at the Texas Capitol this year, resulting in the death of multiple open government bills,” Shannon said. HB 2783 “is but one example. The people of Texas are the losers in all this.”

Indeed. Texas’ transparency laws, formerly among the strongest, emerged in the 1970s as remedies for government scandal. What has happened to them since Abbott took office is a scandal. He didn’t elect the justices of the Supreme Court — not by himself, at least. But he has provided no leadership in demanding a remedy for the damage the court has caused. And when he had the opportunity to let the lone meager transparency measure of the 85th Legislature become law, with or without his signature, he killed it.

Texas needs the commitment of its government leaders to restore, protect, defend the people’s right to public information. Or it needs new government leaders.

State Conference Sept. 14

Join us for our state conference “Transparency = Real News” on Thursday, Sept. 14, in Austin.

FOI Hotline

Our FOI Hotline (800) 580-6651 is available to anyone with a question concerning the Texas Public Information and Texas Open Meetings acts.

Watch Videos from Our Events

Future of the Texas Public Information Act panel discussion at the FOIFT Conference in 2016 on YouTube.
Lisa Falkenberg keynote speech at the FOIFT Conference in 2016 on YouTube.
Don Adams and Mark Updegrove at the FOIFT Conference in 2015 on YouTube.